* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 29.11.2012
+ CS(OS) 1863/2010
RAGHBIR RAI & ANR ..... Plaintiffs
Through: Mr Mayank Mikhail Mukherjee, Adv
versus
PREM LATA & ORS ..... Defendants
Through: Mr Ashok Gurmani, Adv.
AND
+ CS(OS) 1698/2011
PREM LATA ..... Plaintiff
Through: Mr Ashok Gurmani, Adv.
versus
RAGHUBIR RAI & ORS ..... Defendants
Through: Mr Mayank Mikhail Mukherjee, Adv
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
V.K.JAIN, J. (ORAL) IAs No. 12120/2010 (O. 39 R. 1&2 CPC) and 3478/2011 (O. 39 R. 4 CPC) in CS(OS) 1863/2010 and IA No.11080/2011 (O. 39 R. 1 and 2 CPC) in CS(OS) 1698/2011
1. CS(OS) No. 1863/2010 is a suit for permanent injunction. The case of the plaintiffs in this suit is that they are the tenants of defendant No. 1 in respect of CS(OS) ) 1863/2010 & 1698/2011 Page 1 of 7 ground and first floor of Property No.D-2/12, Model Town-III, Delhi-110 009, where they are running a restaurant by the name Dragon Hucks Restaurant. Defendant No. 2 was the husband of defendant No. 1, whereas defendant No. 3 is her son. Defendant No. 2 has since expired during pendency of the suit.
2. The case of the plaintiffs in CS(OS)No. 1863/2010 is that the rent agreed by them with the defendant No. 1 was Rs 1,000/- per month since they had paid Rs 20 lakh as Pagri (an official premium) to her. It is alleged that the defendants are threatening to dispossess the plaintiffs from the suit premises, without due process of law and are demanding rent from them at the rate of Rs 4 lakh. The plaintiffs have accordingly sought an injunction restraining the defendants in this suit from dispossessing them from the suit property. They have also sought a mandatory injunction, directing the police authorities to provide protection to them.
3. The defendants 1 and 3 in CS(OS) No.1863/2010 have alleged in their written statement that the plaintiffs are tenant in respect of only the ground floor and the right side of the first floor of the property. This is also their case that the rent agreed between the parties was Rs 3 lakh per month. It is alleged by them that a sum of Rs 94 lakh is now due from the plaintiff in the said suit towards arrears of rent for the period from 01.09.2008 to 30.04.2011. According to the defendants in the said suit, the tenancy of the plaintiffs was terminated and they are liable to pay CS(OS) ) 1863/2010 & 1698/2011 Page 2 of 7 damages for use and occupation with effect from 01.05.2011 at the rate of Rs 4 lakh per month.
4. The learned counsel for the plaintiffs in CS(OS) No.1863/2010 states that the agreed rate of rent of Rs 1,000/-, they are ready to agree to deposit as arrears of rent at the said rate. He further submits that they have been tendering rent at the agreed rate of Rs 1,000/- to defendants, but they have not accepted the rent at the agreed rate. The plaintiffs in CS(OS) No. 1863/2010 are, therefore, directed to deposit the admitted arrears within four weeks.
5. Suit No. 1698/2011 has been filed by defendant No. 1 in CS(OS) No.1863/2010 seeking possession of the whole of the ground floor except one shop shown as Chemist Shop in the site plan filed in that suit and the right side portion on the first floor. There is an alternative prayer for possession of the whole of the first floor of the property. Defendant No. 1, in CS(OS) No. 1863/2010, who is the plaintiff in Suit No.1698/2011, has also claimed arrears of rent, amounting to Rs 94 lakh for the period from 01.09.2008 to 30.04.2011 at the rate of Rs 3 lakh per month and damages for use and occupation amounting to Rs 4 lakh per month for the period from 01.05.2011 to 31.05.2011. A sum of Rs 20 lakh has also been claimed in that suit towards some previous arrears of rent in terms of a writing dated 14.07.2010, alleged to have been executed by Raghubir Rai, who is plaintiff No. 1 in this suit and defendant No. 1 in Suit No. 1698/2011. CS(OS) ) 1863/2010 & 1698/2011 Page 3 of 7
6. In Suit No. 1698/2011, a Local Commissioner was appointed by the Court to inspect property No. D-2/12, Model Town-III, Delhi-110 009 and ascertain as to who was in physical possession of the suit property. The Local Commissioner accordingly carried the inspection on 23.07.2011 and found that though the whole of the ground floor except one shop is in possession of defendant No. 1 in that suit, i.e., plaintiff No. 1 in Suit No. 1863/2010 only part of the first floor of the suit property is in his possession.
7. Since it is an admitted case that as far the ground floor except one shop and part of the first floor is concerned, the same is in possession of plaintiff No.1 in Suit No. 1863/2010 and was let out to him by the defendant No.1 in Suit No. 1863/2010, the defendants in CS(OS) No. 1863/2010 cannot dispossess the plaintiffs in the suit from the portion occupied by them in property No. D-2/12, Model Town-III, Delhi-110 009, except by due process of law. Even if it is assumed for the sake of arguments that the rate of rent was Rs 3 lakh per month and the plaintiff No. 1 in Suit No. 1863/2010 is in arrears of rent, the defendants in the said suit cannot take law in their own hands and dispossess him from the portion which was lawfully let out to him except due process of law. The plaintiffs in CS(OS) No. 1863/2010 did not trespass in the portion occupied by them. This is an admitted case that they were lawfully inducted as tenant in the portion occupied by them. The intention of defendant No. 1 to take recourse to legal proceedings is CS(OS) ) 1863/2010 & 1698/2011 Page 4 of 7 evident from the that that he has already filed CS(OS) No. 1698/2011 for recovery of possession of the said portion. But, this be ensured that the defendant in CS(OS) No. 1863/2010 do not take recourse to extra legal methods during pendency of the suits and do not give a fait accompli to the plaintiffs in the said suit by dispossessing them without due process of law. It is, therefore, directed that during pendency of the suit, the plaintiffs in Suit No.1863/2010 shall not be dispossessed from the portion which the Local Commissioner found in their possession at the time of inspection by her except by due process of law.
8. The learned counsel for the plaintiff in CS(OS) No. 1863/2010 states that the defendants are obstructing smooth functioning of their restaurant by creating nuisance there. If that be so, nothing prevents them from lodging report with the police for redressal of their grievance.
This order is passed being without going into the question as to whether the defendants in CS(OS) No. 1863/2010 actually made an attempt to forcefully dispossess the plaintiff from the suit property or not. As noted earlier, defendant No. 1 in CS(OS) No. 1863/2010 has already filed CS(OS) No.1698/2011 for taking possession of the suit premises and prima facie, this would indicate that the defendants in CS(OS) No. 1863/2010 do not propose to take law in their hands. The prohibitory order is intended to ensure that no party to the suit takes advantage of pendency of the suit so as to defeat the right of the opposite party in the suit. CS(OS) ) 1863/2010 & 1698/2011 Page 5 of 7
IA No. 11080/2011 has been filed by the plaintiff in CS(OS) No.1698/2011 suit, seeking injunction restraining the defendants in that suit from creating third party interest in the suit property, during pendency of the suit. This is not the case of the defendants in this suit that they have a right to create any third party interest in the portion occupied by them in the property No. D-2/12, Model Town-III, Delhi-110 009. They do not claim any ownership right in the said portion and their case is that they are lawful tenants in the said premises. If that be so, they cannot create any third party interest in the portion occupied by them. Accordingly, they are restrained from creating any third party interest in the suit property subject matter of CS(OS) No. 1698/2011, during pendency of the suit. This order is being passed without going into the question as to whether the defendants in CS(OS) No. 1698/2011 actually intended to create any third party interest in the property subject matter of that suit or not.
The IAs stand disposed of.
IA No. 15955/2012 (under Section 151 CPC) in CS(OS) 1863/2010 This application should be taken as disposed of since the written submissions referred in this application were taken on record and the application referred therein also stand disposed of.
The application may be treated as disposed of.
IA No. 12121/2010 (O. 2 R. 2 CPC) in CS(OS) 1863/2010 This application will be considered at the final hearing of the suit. CS(OS) ) 1863/2010 & 1698/2011 Page 6 of 7 IA No. 11081/2011 (O. 26 R. 9 CPC) in CS(OS) No. 1698/2011 This application may be taken as disposed of since Local Commissioner has already been appointed and she has submitted her report. IA No. 11082/2011 (O. 2 R. 2 CPC) in CS(OS) No. 1698/2011 This application would be taken up for consideration at the time of final hearing of the suit.
IA No. 13496/2011 (O. 38 R. 1, 2, 4&5 CPC) in CS(OS) No. 1698/2011 Mr. Gurnani states that he would be filing an application seeking a direction to the defendant to deposit arrears of rent as well as damages for use and occupation. The proposed application be filed within two weeks. Reply to the application be filed within four weeks thereafter and rejoinder be filed within one week on getting the copy of the reply.
Renotify on 08.03.2013.
CS(OS) 1863/2010 and CS(OS) 1698/2011 and IA 12875/2010 (O. 39 R. 2A) Renotify on the date fixed above.
V.K. JAIN, J NOVEMBER 29, 2012 bg CS(OS) ) 1863/2010 & 1698/2011 Page 7 of 7